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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
SANJAY DHAR, PUNEET GUPTA, JJ.
Nisar Ahmed Bhat, S/o. Sh. Abdullah Bhat - Appellant
Versus
Union Territory of Jammu and Kashmir through NCB, Jammu - Respondent
Crl. A(D) No. 32 of 2022
Decided On : 04-04-2024
NDPS Act - Conviction under Sections 8 and 20 - Summary of Acts and Sections: NDPS Act, 1985, Sections 8, 20, 52A, 68 - The court discussed the provisions of the NDPS Act, including the disposal of seized narcotic drugs and psychotropic substances, the drawing of samples, and the admissibility of evidence. The court also highlighted the legal principles related to the investigation process, the burden of proof, and the presumption of regularity in official acts.
Fact of the Case:
The appellant was convicted of offences under Sections 8 and 20 of the NDPS Act for possession of contraband substance. The case arose from a complaint by the NCB alleging that the appellant was transporting Charas in a truck. The appellant challenged the judgment on various grounds, including the validity of the seizure and sampling of the contraband, the non-disclosure of the informant, the absence of a site plan, and the admissibility of the test analysis report.
Finding of the Court:
The trial court found the appellant guilty of offences under Sections 8 and 20 of the NDPS Act, based on the recovery of contraband substance from the vehicle under the appellant's charge and the lack of explanation for its possession. The court rejected the appellant's challenges to the judgment, ruling that the prosecution had established the guilt of the appellant beyond reasonable doubt.
Issues: The issues raised by the appellant included the validity of the seizure and sampling of the contraband, the non-disclosure of the informant, the absence of a site plan, the admissibility of the test analysis report, the lack of civilian witnesses, and the fairness of the investigation conducted by the informant.
Ratio Decidendi: The court held that the physical production of the contraband and sealed samples before the trial court rendered the challenges to the seizure and sampling process without merit. The court also ruled that the non-disclosure of the informant and the absence of a site plan did not cast doubt on the recovery of the contraband. Additionally, the court found the test analysis report admissible based on the testimony of the Chemical Examiner. The court further held that the absence of civilian witnesses did not render the prosecution case nugatory. Finally, the court ruled that the investigation conducted by the informant did not vitiate the trial unless bias or unfairness was proven.
Final Decision: The court upheld the appellant's conviction under Sections 8 and 20 of the NDPS Act and modified the sentence to rigorous imprisonment of 10 years with a fine of Rs. one lac. In default of payment of the fine, the appellant was to undergo further rigorous imprisonment for a period of six months.
JUDGMENT :
Sanjay Dhar, J.
1. Through the medium of present appeal, the appellant has challenged judgment dated 31.05.2022 passed by the learned Principal Sessions(Special Judge), Jammu(hereinafter to be referred as the trial court), whereby in a case arising out of NCB Crime No. 01/2017 for offences under Sections 8, 20 and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act), the appellant has been convicted of offences under Sections 8/20 of the NDPS Act and by virtue of a separate order passed on the same date, he has been sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of rupees one lac.
2. The brief facts giving rise to filing of this appeal are that a complaint was lodged by respondent-NCB before the trial court alleging therein that on 17.03.2017 at about 0900 hours, complainant, Kaushal Kumar (PW-1) received a secret information from reliable sources that a Truck bearing registration No. JK03C 9491 was proceeding from Anantnag and its driver, the appellant herein would deliver a consignment of Charas to co-accused-Ghulam Nabi at Kunjwani Chowk on the said date. The information was reduced into writing by PW-1 and placed before the Superintendent, NCB, Jammu Sh. K.P. Tiwari(PW-2), who constituted a team of officers/officials for carrying out operations at Kunjwani Chowk, Jammu. Sh. Kaushal Kumar(PW-1) received the NCB seal from PW-7-Pawan Dev and he along with the team comprising Sh. C.S. Rathore, Intelligence Officer, Sh. Vijay Kumar, Sepoy, Sh. V. Bhardwaj, Sepoy, Sh. Rakesh Kumar, Sepoy, Sh. Harvinder Singh, Driver, Sh. Tilak Raj Driver, Sh. Ram Lal, Driver and Sh. Romesh Kumar OTC NCB Jammu under the supervision of Sh. K.P. Tiwari, Superintendent left from NCB Office, Jammu to Kunjwani Chowk, Jammu. The NCB team also carried with it the kit including weighing machine etc. A naka was laid on spot by the said team.
3. As per the complaint, at about 1130 hours, Truck bearing No. JK03C 9491 was spotted moving towards Kathua. The said team was intercepted by PW-1, who found two persons, Driver Nissar Ahmed Bhat (appellant herein) and Ghulam Nabi (co-accused) seated in the Truck. Notices under Section 50 of the NDPS Act were served upon the two accused before conducting their personal search. According to the complaint, the two accused expressed their willingness to be subjected to search in the presence of NCB Team Jammu and accordingly, they were subjected to personal search. However, no contraband substance was recovered from their personal search. Thereafter, PW-1 Kaushal Kumar conducted the search of the Truck and from the cabin of the said truck, one green coloured envelop was recovered, which upon opening was found to contain two more packets wrapped in brown cello tape. Both these packets were weighed with weighing machine and the recovered material was found to be weighing 4 kgs and the same was tested with Drug Detection Kit. It resulted positive for Charas.
4. According to the complainant, the recovered Charas, which was in the shape of balls, was broken and a homogeneous mixture was made. Its net weight was found to be 3.928 Kgs, whereafter, its two representative samples of 24 grams each were drawn and sealed on spot with the seal which the team was carrying with it. The samples were marked as A1 and A2. The remaining contraband weighing 3.880 Kgs was also sealed with five seals and it was marked as Lot-A. The recovery-cum-seizure memo as also the test memo were prepared on spot. Both the accused as well as PWs 1 and 2 put their signatures on the recovery-cum-seizure memo.
5. During the preliminary enquiry, the appellant/accused-Nissar Ahmed Bhat disclosed that the seized Charas was delivered to him by one Firdous Ahmed Bhat with a direction that the same was to be handed over to Ghulam Nabi, the co-accused for which he had been paid a sum of Rs.10,000/-. The statement of accused/appellant under Section 67 of the NDPS Act was recorded by PW-1
The court held that the prosecution's reliance on police witnesses is valid despite absence of independent witnesses, emphasizing that procedural defects in sample collection did not automatically in....
Non-compliance with mandatory provisions of the NDPS Act and contradictions in evidence undermine the prosecution's case, leading to the reversal of conviction.
The main legal point established in the judgment is the requirement for compliance with procedural safeguards and fair procedure in the investigation and trial of cases under the NDPS Act.
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